Monday, December 19, 2016

Congress Enhances Whistleblower Protections for Contractors and Military Service Members

Congress just passed two bills making significant improvements in whistleblower protections, one for government contractors and another for military service members.

In 2013, Congress included in that year’s National Defense Authorization Act (“NDAA”) a pilot program for whistleblower protection for employees of federal contractors. In mid-December 2016, the Senate made that pilot program permanent with additional provisions.

The original pilot program allowed whistleblowers to report retaliation to the Inspector General (IG) of the federal agency that issued the affected contract. This plan has the advantage of assuring that the IGs would also learn about whatever the whistleblower blew the whistle on.

The IG could investigate and order relief for the whistleblower, including reinstatement, backpay, compensatory damages and attorney’s fees. 41 U.S.C. § 4712(c)(1). The various IGs reacted unevenly as they did not have adequate training or additional resources for this new responsibility. Whistleblowers who did not get a final order from the IG within 210 days could bring their claims to federal court.

Whistleblowers only had to show that their protected activity was a “contributing factor” in the adverse action. To defeat the claim, the employer would have to show, by “clear and convincing evidence,” that they would have taken the same adverse action even without the protected activity. 41 U.S.C. § 4712(c)(6). The pilot program utilized the same analysis as the Whistleblower Protection Enhancement Act (WPEA), 5 U.S.C. § 1221(e)(2), and dovetails with the False Claims Act, 31 U.S.C. § 3730(h), which allows direct access to federal court and double backpay, but does not explicitly provide for compensatory damages.

In S. 795, passed in December 2016, Congress made the pilot program permanent. It also expanded coverage to include employees of subgrantees. Previously, the Department of Education IG had taken the position that the 2013 coverage of “contractors, subcontractors and grantees” excluded coverage of subgrantees. That position is no longer viable. Congress also added protection for whistleblowers employed through personal service contracts.

The 2017 NDAA, S. 2943, improves the Military Whistleblower Protection Act (MWPA), 10 U.S.C. § 1034. It is also waiting for President Obama’s signature. The MWPA has long been viewed as weak protection for service members who report wrongdoing. It depends on the Defense Department’s IG (DoDIG) to conduct investigations and leaves service members at the mercy of their harassers during the long investigations.

Section 531 of the 2017 NDAA makes it unlawful to change a whistleblower’s duties to those that are “not commensurate with the member’s grade” or to launch an investigation against the whistleblower (a protection federal civilian employees do not have). In a novel addition, the bill requires superiors to respond to complaints of harassment and retaliation. Superior officers will thus be forced to protect whistleblowers under their command, or face sanctions themselves.

The new bill also permits the IG to make a preliminary determination that a retaliation complaint has merit, and report it to the Secretary for “appropriate” action. This may provide interim relief to whistleblowers who face immediate hardship. The IG will also have to make reports about the investigation every 180 days.

As before, service members can use IG findings of retaliation to seek corrections to military records, including discharges.

DoDIG will be required to establish standards for whistleblower investigations and training investigators. DoDIG may benefit from reading OSHA’s Whistleblower Investigations Manual.

Section 536 of the 2017 NDAA requires the Comptroller General of the United States to make a report on the effectiveness of the MWPA. The report will compare results under the MWPA with the civilian WPA and assess the effectiveness of the DoDIG. The report must also disclose incidents of retaliation against whistleblowers within the DoDIG. This last provision telegraphs that Congress has heard reports of such retaliation at DoDIG and is not happy about it.

While the 2017 NDAA does not fundamentally change the structure of decision-making for military whistleblowers (such as allowing jury trials in federal court), it does add provisions to expand the scope of protection, permit faster responses, and add layers of accountability and reporting. A future Congress could use this information to assess whether the whistleblower protection program can encourage service members to use official channels to raise their concerns. An increase in leaks to the media by military personnel would indicate a lack of trust in the military’s whistleblower protection program.

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